Deletion Of Defendant Under Order 1 Rule 10 CPC Does Not Amount To Abandonment Of Claim: Bombay High Court
The Court held that striking out a party from a suit does not extinguish the plaintiff’s rights against such party, unlike withdrawal under Order 23 Rule 1 CPC.
The Bombay High Court has held that deletion of a defendant from a suit under Order 1 Rule 10 of the Code of Civil Procedure, 1908, does not amount to abandonment of the claim against such defendant, and does not bar the plaintiff from enforcing rights arising out of the decree.
The Court was hearing a writ petition filed by a decree-holder challenging an order of the Executing Court refusing to proceed against a purchaser pendente lite on the ground that he had been deleted from the suit.
Justice Ajit B. Kadethankar observed: “By no stretch of imagination can it be said that striking out a defendant under Order 1 Rule 10(2) perpetually concludes the right of a plaintiff against such defendant. This distinctly differs from abandonment of a claim against the defendant(s) under Order 23 Rule 1 of the C.P.C.1908”.
Advocate R.F. Totala appeared for the Petitioners; P.V. Mandlik, Senior Advocate, appeared for the respondents.
Background
The petitioner had obtained a decree for possession and related reliefs in respect of a property after prolonged litigation. During the pendency of the suit, a portion of the suit property was sold to Respondent No.7, who was subsequently impleaded as a defendant and later deleted from the array of parties under Order 1 Rule 10 CPC.
Following the decree, the petitioner then initiated execution proceedings seeking possession of the decretal property, including the portion held by Respondent No.7. The Executing Court rejected the application on the ground that Respondent No.7, having been deleted from the suit, could not be treated as a person bound by the decree.
Aggrieved, the petitioner approached the High Court, contending that deletion of a party does not amount to abandonment of the claim and that a purchaser pendente lite remains bound by the decree under law.
Court’s Observation
The Court examined the distinction between the deletion of a party under Order 1 Rule 10 CPC and the withdrawal of a claim under Order 23 Rule 1 CPC.
It held that deletion of a party is a procedural step based on necessity or propriety of the party’s presence in the suit, and does not result in forfeiture of substantive rights. The Court observed that “Order 1 Rule 10… in no terms… bespeaks of perpetual forfeiture or waiver of a party’s claim.”
In contrast, it noted that withdrawal under Order 23 Rule 1 involves conscious abandonment of claims and carries legal consequences barring re-agitation of the same claim.
The Court emphasised that “Order 1 Rule 10 and Order 23 Rule 1 are not at par as regards the rights “of or against” a party sought to be placed out of the suit proceedings”.
It was observed that “while the earlier comes into play on account of requirement or non-requirement of a party in the suit corresponding to the situation prevalent, the latter perpetually disables Plaintiff’s right against the Defendant in respect of the Subject-matter of the Suit, unless leave of the Court is obtained.”
Accordingly, it held that the deletion of Respondent No.7 from the suit could not be construed as abandonment of the claim against him.
The Court further examined the effect of Section 52 of the Transfer of Property Act, 1882 and held that Respondent No.7, being a purchaser pendente lite, was bound by the decree. It noted that the transfer in favour of Respondent No.7 took place during the pendency of the suit and therefore his rights were subject to the outcome of the litigation.
The Court held that such a purchaser falls within the scope of “any person bound by decree” under Order 21 Rule 35 CPC. It was observed that the decree passed against the vendor is enforceable against the purchaser, irrespective of whether he was a party to the decree at the time of its passing.
The Court found that the Executing Court had erred in treating the deletion of Respondent No.7 as equivalent to the withdrawal of the suit against him. It held that such reasoning was contrary to the record and the settled legal position, particularly in light of earlier orders clarifying that the deletion was simpliciter under Order 1 Rule 10 CPC.
Conclusion
The High Court allowed the writ petition and set aside the order of the Executing Court.
It directed that the application filed by the decree-holder be allowed and that execution proceedings be carried forward in accordance with law, including against the purchaser pendente lite.
Cause Title: Kashinath Ramji Shinde (Deceased) Through LRs v. Pradip Madhavrao Shinde & Ors. (Neutral Citation: 2026:BHC-AUG:16901)
